Legal Information: New York

Restraining Orders

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November 9, 2020

Step 4: Service of process

The court will give you instructions on how the summons, petition, and order of protection can be served on the abuser. The court should also tell you that you have the right to have the Police Department serve the summons, petition, and order. In many counties, you can also use the Sheriff’s office instead of the police department - call your local Sheriff’s office for their hours of operation and to make sure there is no fee involved. Note: NY state has an Order of Protection Notification System, which allows you to be notified by e-mail, text, iPhone/iPad app, telephone, fax or web query, when law enforcement serves your family court order of protection upon the abuser.

Service of process is important because an order of protection does not go into effect (is not valid) until it is served. Furthermore, the respondent (the abuser) has to be given notice of the court date since the respondent has the right to appear in court on the next court date.

Please remember that if you are using a friend, relative or a process server to serve the papers, that person has to be over 18 years of age. Since you are what is called a “party” to the case, you cannot serve the court papers yourself. The police are required by law to help with service and have to try more than once to find the respondent if they cannot find him/her on the first attempt.

It is important that no matter who serves the court papers, you ensure that the person who serves the papers fills out the affidavit of service that the court will give to you and that you bring the completed affidavit to court with you on your return court date. This is your proof that the respondent was served even if s/he doesn’t show up in court. The affidavit of service usually asks for the time and date that the respondent was served as well as other identifying information about the respondent such as his/her physical appearance, etc. The affidavit of service must be notarized. If you are using the police or sheriff to serve the papers, they usually will fill out what is called an affirmation of service and it does not need to be notarized. If you have a question as to whether the form needs to be notarized, you should check with your local court clerk.

You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?

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